Hukuk Hakkı Korumaktır

July – August 2019

The Penalty Clause Based on the Condition of Working for a Certain Period of Time in Exchange for the Training Provided to the Employers Under the Employment Agreements

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Employment agreement is an agreement in which, one party, i.e, the employer, undertakes to perform a work dependently to another, i.e., the employee, in exchange of a certain wage. [1]1

Employment agreement may vary according to the different types of work. However, without any exception, all employers expect maximum efficiency from its employers. The efficiency of the work may increase with the help of both the employer and the employee. However, most of the time, to maximize the efficiency of the employers, the employee provides the necessary training program to its employers, before or after the commencement of the work. This training, which also brings benefits to the employee by contributing to the manufacturing of goods and services in the workplace, helps the employers to develop its skills and increases its chance to find prospect jobs.

It is certain that the training program, whether it would be academic or more practical, would both increase the benefits for the employer’s self-development and its’ contribution to the work. Since this is the case, the employer, who allocates resources to provide sufficient training to its employers, desire to guarantee them to work for itself for a certain period of time. In practice, the most common tool that is used by employers to maintain the continuity of the employment agreements is “penalty clauses”.

Penalty clause has functions of punishment and compensation. 2 In practice, it is used to guarantee the implementation of the provisions of the existing employment agreement. The penalty clause has to be inserted as a provision into the employment agreements between the parties and carry out all validity requirements. The penalty clause, that is agreed in exchange for the training program provided by the employee and obliges employer to work for a certain period of time for itself is a legal concept. The penalty clause is regulated under the Law of Obligation numbered 6098, Art 179.3 In accordance with this provision, the parties can freely agree on the amount of the penalty clause in case of the termination of the main contract. However, this freedom cannot be enjoyed without any restriction. The Supreme Court, while examining the validity of the penalty clauses, requires a delicate balance between the training program and the amount paid by the employer in exchange for this training4. The penalty clause in the employment contract has to be agreed by both parties. Otherwise, it shall be deemed non-binding since the penalty clause contains provisions against one party to the contract. Therefore, the penalty clause in the employment contracts needs to be concluded by all parties to the contract. The Supreme Court held that, “in cases where the higher amount of the penalty clause is agreed against the employee than the one agreed against the employer, the higher amount has to be equalized to the lower one.” However, it is completely different for the penalty clauses agreed in exchange for the training provided by the employer. The above-mentioned situation would not be in question for the penalty clauses agreed in exchange for the training program provided by the employer, since, by its very nature, it could only be prescribed against the employee, that prevents its invalidity. 5

The penalty clause agreed in exchange for the training program could only be agreed where the employment agreement has terminated due to the certain reasons above;

The Penalty Clause Agreed in Exchange for the Training Program in Cases Where the Employment Agreement Is Terminated by the Employer :

  1. In cases where the employment contract is terminated by the employer based on the reasons stipulated under the Art 25/II of the Labour Law, namely the circumstances that is not incompatible with the morals and the good faith rules, the employee shall pay the penalty clause.
  2. In cases where the employment contract is terminated by the employer in accordance with the Art 17 of the Labour Law, the employee shall not be requested to pay the penalty clause.
  3. In cases where the employment contract is terminated by the employer in accordance with the Art 25/I of the Labour Law that regulates the “termination due to health concerns” and Art 25/III “termination due to force majeure”, the employee shall not be requested to pay the penalty clause.

Another important point regarding the penalty clause is that whether the employer could demand to recover any training expenses from its employee. Although it is explicitly agreed in the employment contract that the employer could request the all training expenses, only the documented expenses could be requested by the employer. In its decision, dated 16.12.2001, and numbered 2002/9301 E. , 2002/23749 K, 9th Civil Chamber of the Supreme Court held that the employer could only request the expenses that is proved and the rest of the expenses that exceed the proved amount has to be rejected. 6

To sum up, the penalty clause agreed in exchange for the training program, is used by employers to oblige the employee to work for a certain period of time for themselves. Therefore, the employers could provide the training program to increase the efficiency of their employees which would then increase their contribution to the manufacturing of good and services and could guarantee its efforts by inserting penalty clause to the employment agreement. The employees, as long as they accept the agreement which includes this type of penalty clause, could have the opportunity to develop their skill and increase their chance to find new jobs in the future. 

 

Legal Intern Beyzanur Kuru

 

1 4857 sayılı İş Kanunu, Madde 8, Fıkra 1

2 Eren, Fikret, Borçlar Hukuku C. II (2001), s. 1169;YHGK, 23.12.2001 T, E. 2001/9–1175, K. 2001/1166

3 C. Ceza koşulu - I. Alacaklının hakları - 1. Cezanın sözleşmenin ifası ile ilişkisi

“Bir sözleşmenin hiç veya gereği gibi ifa edilmemesi durumu için bir ceza kararlaştırılmışsa, aksi sözleşmeden anlaşılmadıkça alacaklı, ya borcun ya da cezanın ifasını isteyebilir.”

4 Yargıtay 9.H.D. 1996/22867 E., 1997/6102 K., 26.03.1997 T.

5 http://iskanunu.com/genel/533-is-sozlesmelerinde-egitim-karsiligi-cezai-sart-uygulamalari-ve-calisma-mevzuatindaki-yeri/

6 Özdemir, Erdem;  İş Hukukunda Eğitim Karşılığı Öngörülen Cezai Şart, s. 148, dpn. 23.